UN Commission on the Truth for El Salvador, From Madness to Hope: The 12-Year War in El Salvador, Report, 15 March 1993, in UN Secretary General, Letter to the President of the Security Council (S/25500), Annex. (PDF link)
TABLE OF CONTENTS
II. THE MANDATE
B. APPLICABLE LAW
The Commission on the Truth owes its existence and authority to the El Salvador peace agreements, a set of agreements negotiated over a period of more than three years (1989-1992) between the Government of El Salvador and FMLN. The negotiating process, which took place under United Nations auspices with the special cooperation of Colombia, Mexico, Spain and Venezuela (the so-called "friends of the Secretary-General"), culminated in the Peace Agreement signed at Chapultepec, Mexico, on 16 January 1992. 1/
The decision to set up the Commission on the Truth was taken by the Parties in the Mexico Agreements, signed at Mexico City on 27 April 1991. 2/ These Agreements define the functions and powers of the Commission, while its authority is expanded by article 5 of the Chapultepec Peace Agreement, entitled "End to Impunity". 3/ Together, these provisions constitute the Commission’s "mandate".
The mandate defines the Commission’s functions as follows:
"The Commission shall have the task of investigating serious acts of violence that have occurred since 1980 and whose impact on society urgently demands that the public should know the truth."
It then states that the Commission shall take the following into account:
"(a) The exceptional importance that may be attached to the acts to be investigated, their characteristics and impact, and the social unrest to which they gave rise; and
(b) The need to create confidence in the positive changes which the peace process is promoting and to assist the transition to national reconciliation."
The specific functions assigned to the Commission as regards impunity are defined, in part, in the Chapultepec Agreement, which provides as follows:
"The Parties recognize the need to clarify and put an end to any indication of impunity on the part of officers of the armed forces, particularly in cases where respect for human rights is jeopardized. To that end, the Parties refer this issue to the Commission on the Truth for consideration and resolution."
In addition to granting the Commission powers with respect to impunity and the investigation of serious acts of violence, the peace agreements entrust the Commission with making "legal, political or administrative" recommendations. Such recommendations may relate to specific cases or may be more general. In the latter case, they "may include measures to prevent the repetition of such acts, and initiatives to promote national reconciliation".
The Commission was thus given two specific powers: the power to make investigations and the power to make recommendations. The latter power is particularly important since, under the mandate, "the Parties undertake to carry out the Commission’s recommendations". The Parties thus agree to be bound by the Commission’s recommendations.
As regards the Commission’s other task, the mandate entrusted it with investigating "serious acts of violence ... whose impact on society urgently demands that the public should know the truth". In other words, in deciding which acts to focus on, the Commission would have to take into account the particular importance of each act, its repercussions and the social unrest to which it gave rise. However, the mandate did not list or identify any specific cases for investigation; nor did it distinguish between large-scale acts of violence and acts involving only a handful of people. Instead, the mandate emphasized serious acts of violence and their impact or repercussions. On the basis of these criteria, the Commission investigated two types of cases:
(a) Individual cases or acts which, by their nature, outraged Salvadorian society and/or international opinion;
(b) A series of individual cases with similar characteristics revealing a systematic pattern of violence or ill-treatment which, taken together, equally outraged Salvadorian society, especially since their aim was to intimidate certain sectors of that society.
The Commission attaches equal importance to uncovering the truth in both kinds of cases. Moreover, these two types of cases are not mutually exclusive. Many of the so-called individual acts of violence which had the greatest impact on public opinion also had characteristics revealing systematic patterns of violence.
In investigating these acts, the Commission took into account three additional factors which have a bearing on the fulfilment of its mandate. The first was that it must investigate serious or flagrant acts committed by both sides in the Salvadorian conflict and not just by one of the Parties. Secondly, in referring the issue of the impunity "of officers of the armed forces, particularly in cases where respect for human rights is jeopardized" to the Commission, the Chapultepec Agreement urged the Commission to pay particular attention to this area and to acts of violence committed by officers of the armed forces which were never investigated or punished. Thirdly, the Commission was given six months in which to perform its task.
If we consider that the Salvadorian conflict lasted 12 years and resulted in a huge number of deaths and other serious acts of violence, it was clearly impossible for the Commission to deal with every act that could have been included within its sphere of competence. In deciding to investigate one case rather than another, it had to weigh such considerations as the representative nature of the case, the availability of sufficient evidence, the investigatory resources available to the Commission, the time needed to conduct an exhaustive investigation and the issue of impunity as defined in the mandate.
1/ Published by the United Nations under the title El Salvador Agreements: The Path to Peace (DPI/1208, May 1992).
2/ El Salvador Agreements, supra, p. 30.
3/ El Salvador Peace Agreement (signed at Chapultepec), supra, p. 55.